Los Angeles Times
December 17, 2005
WASHINGTON — Members of Congress demanded Friday that President Bush and his administration explain his decision to permit the country's most secretive intelligence agency to spy on American citizens in the United States after the Sept. 11 terrorist attacks without first obtaining warrants.
Democrats and some Republicans denounced the administration's action, describing it as an example of Bush's use of the threat of terrorism to assume new legal and intelligence powers and to limit civil liberties.
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said he would call congressional hearings as soon as possible. Warrantless surveillance of U.S. citizens is "wrong, and it can't be condoned at all," he said.
According to former officials familiar with the policy, Bush signed an executive order in 2002 granting new surveillance powers to the National Security Agency — the branch of the U.S. intelligence services responsible for international eavesdropping, and whose existence was long denied by the government.
"I want to know precisely what they did: how NSA utilized their technical equipment, whose conversations they overheard, how many conversations they overheard, what they did with the material, what purported justification there was and we will go from there," Specter said.
After the attacks on New York and the Pentagon, the administration sought to ease the restrictions on wiretaps and e-mail surveillance to investigate U.S. citizens suspected of having ties to terrorists. Ordinarily, the government must gain permission from special courts to turn its surveillance on U.S. citizens, either domestically or overseas.
The surveillance operation was first reported by the New York Times.
"If this article is accurate, it calls into question the integrity and credibility of our nation's commitment to the rule of law," said Sen. Dianne Feinstein (D-Calif.), a member of the intelligence and judiciary committees.
The president and his aides moved quickly Friday to try to contain the controversy.
Vice President Dick Cheney went to Capitol Hill to confer with the leaders of both chambers as well as the chairman and top Democrat on each of the intelligence panels. Those present refused to discuss the session.
In a TV interview, Bush said he could not talk about the matter. "We do not discuss ongoing intelligence operations to protect the country, and the reason why is that there's an enemy that lurks, that would like to know exactly what we're trying to do to stop them," he said on PBS' "NewsHour With Jim Lehrer."
Bush said he understood that Americans were eager to learn the details of the post-Sept. 11 surveillance operations. But he's "just not going to do it," he said. U.S. intelligence officials also refused to confirm the account.
The existence of the highly classified NSA program was confirmed by two former senior U.S. intelligence officials with firsthand knowledge of the effort. The former officials spoke on condition of anonymity.
The program was launched in the aftermath of the Sept. 11 attacks, and was designed to enable the NSA to monitor communications between Americans in the U.S. and people overseas suspected of having ties to terrorist networks. One aim was to take swift advantage of fresh leads collected overseas by the CIA, especially in cases in which an agency raid led to the seizure of a laptop or cellphone containing logs of phone numbers.
One of the former intelligence officials said it was designed to enable them "to follow up on anything and exhaust all possible leads" at a time when "the threat level couldn't be any higher." Much of the NSA's activity was driven by CIA operations.
"We would say, any call from this number — whether it goes to Brooklyn or Tashkent — listen in on it," the former official said. "The freedom was needed to follow the traffic, the phone traffic, wherever it went." The former official, who defended the program, added: "You have to remember that up until the Patriot Act, [NSA eavesdropping experts] had to hang up even if they had Osama bin Laden talking to an American."
The second former official said the program contributed to the apprehension of Iyman Faris, an Ohio truck driver who pleaded guilty in 2003 to collaborating with Al Qaeda in a plot to blow up the Brooklyn Bridge.
The NSA effort was suspended at one point because of objections from a judge, but was subsequently resumed and was still active as recently as several months ago, one of the former officials said.
One of the main concerns after Sept. 11, the former officials said, was that obtaining warrants took so long that there was little time to react to fresh intelligence. But, they said, there was concern from the very beginning in some quarters that the program might be overstepping 1970s-era laws protecting the civil liberties of Americans.
"You can imagine a program like this was kept in the tightest of compartments," the second former official said. But even within those compartments, he said, there was "uneasiness among some folks, wondering whether this does have appropriate authorization."
Former Sen. Bob Graham (D-Fla.), who was chairman of the Intelligence Committee at the time the eavesdropping program was launched, said in an interview Friday that he was never told about the program during his time on the committee.
"I didn't learn about it until well after I was off the Intelligence Committee," said Graham, whose tenure as chairman began several months before the Sept. 11 attacks and ended in January 2003.
Graham's statement raises questions about whether the Bush administration provided timely notice to congressional oversight committees, as is required by law. He recalled attending a meeting in early 2002 in Cheney's office about the NSA, but it focused on other operations, such as monitoring overseas e-mail traffic that flowed through Internet service providers based in the U.S.
Federal law requires the president to keep Congress "fully and currently informed" of all significant intelligence activities. Legal experts and congressional officials said a program monitoring the electronic communications of Americans would be considered the type of program that would require immediate congressional notification.
But some pointed to a loophole in the law that allows a president to withhold information under extreme circumstances.
In comments to reporters, Atty. Gen. Alberto R. Gonzales insisted that the administration had followed the law, including briefing lawmakers as proxies for the public. "I certainly respect and understand the need for the American people to understand what their government is doing," he said. "And, obviously, we respect that and we try to make information available to the American people, but we also have a corresponding duty to ensure that national security is protected."
Feinstein said that informing a handful of members of Congress who are restricted from reporting or responding to the information in any way did not make the policy legal or constitute congressional oversight.
"What is concerning me, as a member of the Intelligence Committee, is if eight people, rather than 535 people, can know there is going to be an illegal act and they were told this under an intelligence umbrella — and therefore, their lips are sealed — does that make the act any less culpable? I don't think so," Feinstein said.